Citation Nr: 1034835
Decision Date: 09/15/10 Archive Date: 09/21/10
DOCKET NO. 04-29 209 ) DATE
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On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
Cleveland, Ohio
THE ISSUE
Entitlement to an initial rating in excess of 10 percent for
prostatitis, status post transurethral electrovaporization of the
prostate.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
Harold A. Beach
INTRODUCTION
The Veteran served on active duty from September 1962 to
September 1965.
In March 2009, the RO granted the Veteran's claim of entitlement
to service connection for prostatitis and assigned a
noncompensable rating, effective May 28, 2002. The Veteran
disagreed with that rating and perfected an appeal to the Board
of Veterans' Appeals (Board).
In May 2009, the Board remanded the claim for additional
development. Following the requested development, the VA Appeals
Management Center in Washington, D.C. granted the Veteran a 10
percent rating for prostatitis but retained the initial effective
date of May 28, 2002. Because that was not a full grant of
benefits sought, the case was returned to the Board for further
appellate action.
In his April 2009 Notice of Disagreement, the Veteran raised
contentions to the effect that service connection was warranted
for ejaculatory dysfunction. That claim has not been certified
to the Board on appeal nor has it otherwise been developed for
appellate purposes. Therefore, the Board has no jurisdiction
over that claim and it will not be considered below. 38 U.S.C.A.
§ 7104(a) (West 2002); 38 C.F.R. § 20.101 (2009). It is referred
to the RO, however, for appropriate action.
FINDING OF FACT
Since service connection became effective, May 28, 2002, the
Veteran's prostatitis, status post transurethral
electrovaporization of the prostate, has been manifested
primarily by groin pain, dysuria, intermittent urgency and waking
once a night to urinate.
CONCLUSION OF LAW
The criteria have not been met for an initial rating in excess of
10 percent for prostatitis, status post transurethral
electrovaporization of the prostate. 38 U.S.C.A. §§ 1155, 5103,
5103A (West 2002 and Supp. 2009); 38 C.F.R. §§ 3.159, 4.1, 4.7,
4.115b, Diagnostic Code 7527 (2009).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
VA's Duty to Notify and Assist
Prior to consideration of the merits of the Veteran's appeal, the
Board must determine whether VA has met its statutory duty to
assist him in the development of the issue of entitlement to an
increased rating for prostatitis. 38 U.S.C.A. §§ 5103, 5103A;
38 C.F.R. § 3.159. After reviewing the record, the Board finds
that VA has met that duty.
In March 2009, the RO granted the Veteran's claim of entitlement
to service connection for prostatitis and assigned a
noncompensable rating, effective May 28, 2002. The Veteran
disagreed with that rating and this appeal ensued. Thereafter,
VA notified the Veteran of the information and evidence necessary
to substantiate and complete his claim for an increased rating,
including the evidence to be provided by him and notice of the
evidence VA would attempt to obtain. VA informed the Veteran
that in order to establish an increased rating, he would have to
submit evidence showing that his prostatitis had increase in
severity. In particular, he was informed that VA would consider
the nature and symptoms of his prostatitis, the severity and
duration of those symptoms, and the impact of his prostatitis on
his employment and daily life. 38 U.S.C.A. § 5103(a).
Following the notice to the Veteran, VA fulfilled its duty to
assist him in obtaining identified and available evidence
necessary to substantiate his claim. That duty
requires VA to make reasonable efforts to obtain relevant records
(including private
records) that the Veteran adequately identifies to VA and
authorizes VA to obtain. 38 U.S.C.A. § 5103A(b)(1). However,
the duty to assist is not a one-way street. Olsen v. Principi, 3
Vet. App. 480 (1992). It is the Veteran's responsibility to
present and support his claim. 38 U.S.C.A. § 5103.
In this case, VA obtained or ensured the presence of records and
reports reflecting his treatment by private health care providers
from August 1996 through February 2005; records reflecting his
treatment by VA from July 2003 through November 2009; several
extracts from medical texts pertaining to prostatitis; and a
March 2005 statement from the Veteran's wife. In February 2009,
VA examined the Veteran to determine the extent of his impairment
due to prostatitis. The VA examination report shows that the
examiner reviewed the Veteran's medical history, interviewed and
examined the Veteran, documented his current medical conditions,
and rendered diagnoses and opinions consistent with the remainder
of the evidence of record. Therefore, the Board concludes that
the VA examination is adequate for evaluation purposes. See 38
C.F.R. § 4.2 (2009); see also Barr v. Nicholson, 21 Vet. App.
303, 312 (2007) (holding that when VA undertakes to provide a VA
examination or obtain a VA opinion, it must ensure that the
examination or opinion is adequate).
Finally, VA offered the Veteran an opportunity to present
additional evidence and argument at a hearing on appeal.
Although had had two hearings concerning the issue of entitlement
to service connection for prostatitis, he has not requested, to
date, a hearing with respect to the rating assigned for that
disability. Accordingly, the Board will consider the Veteran's
claim on the basis of the evidence of record.
In sum, the Veteran has been afforded a meaningful opportunity to
participate in the development of his appeal. He has not
identified any outstanding evidence which could support his
claim, and there is no evidence of any VA error in notifying or
assisting the Veteran that could result in prejudice to him or
that could otherwise affect the essential fairness of the
adjudication. In fact, in July 2010, he stated that he had no
further evidence to submit. Accordingly, the Board will proceed
to the merits of the appeal.
Analysis
Disability evaluations are determined by the application of VA's
Schedule For Rating Disabilities, which assigns ratings based on
the average impairment of earning capacity resulting from a
service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part
4 (2008). The percentage ratings represent, as far as can
practicably be determined, the average impairment in earning
capacity (in civilian occupations) resulting from service-
connected disability. 38 C.F.R. § 4.1.
Prostatitis is rated in accordance with the criteria set forth in
38 C.F.R. § 4.115b, Diagnostic Code 7527. That disorder is rated
on the basis of voiding dysfunction or urinary tract infections,
whichever is more predominant.
With respect to voiding dysfunction, prostatitis, is rated as
urine leakage, frequency, or obstructed voiding. When there is
continual urine leakage, post-surgical urinary diversion, urinary
incontinence, or stress incontinence, a 20 percent rating is
warranted, when the Veteran is required to wear absorbent
materials which must be changed less than two times per day. A
40 percent rating is warranted, when the Veteran is required to
wear absorbent materials which must be changed two to four times
per day.
In cases of urinary frequency, a 10 percent rating is warranted
when there a daytime voiding interval between two and three
hours, or; when the Veteran awakens to void two times per night.
A 20 percent rating is warranted when there a daytime voiding
interval between one and two hours, or; when the Veteran awakens
to void three to four times per night.
With respect to voiding obstruction, a 10 percent rating is
warranted when there is Marked obstructive symptomatology
(hesitancy, slow or weak stream, decreased force of stream) with
any one or combination of the following: 1) Post void residuals
greater than 150 cc; 2) Uroflowmetry; markedly diminished peak
flow rate (less than 10 cc/sec); 3) Recurrent urinary tract
infections secondary to obstruction; or 4) Stricture disease
requiring periodic dilatation every 2 to 3 months. A 30 percent
rating is warranted for voiding dysfunction when there is urinary
retention requiring intermittent or continuous catheterization.
With respect to urinary tract infections, a 10 percent rating is
warranted when the infection requires long-term drug therapy with
one to two hospitalizations per year and/or requiring intensive
management. A 30 percent rating is warranted for recurrent
symptomatic infection requiring drainage/frequent hospitalization
(greater, than two times a year), and/or requiring continuous
intensive management. Otherwise, prostatitis will be rated as
renal dysfunction.
With respect to renal dysfunction, a 30 percent rating is
warranted when albumin is constant or recurring with hyaline and
granular casts or red blood cells; or, transient or slight edema
or hypertension at least 10 percent disabling under 38 C.F.R.
§ 4.104, Diagnostic Code 7101.
Where there is a question as to which of two evaluations shall be
applied, the higher evaluation will be assigned if the disability
picture more nearly approximates the criteria required for that
rating. Otherwise, the lower rating will be assigned. 38 C.F.R.
§ 4.7.
In order to evaluate the level of disability and any changes in
condition, it is necessary to consider the complete medical
history of the Veteran's condition. Schafrath v. Derwinski,
1 Vet. App. 589, 594 (1991). Where, as in this case, service
connection is granted and an initial rating award is at issue
separate ratings can be assigned for separate periods from the
time service connection became effective.) Fenderson v. West, 12
Vet. App. 119 (1999). That is, a veteran may experience multiple
distinct degrees of disability that might result in different
levels of compensation from the time the service connection claim
was filed until a final decision is made. Therefore, the
following analysis is undertaken with consideration of the
possibility that different ratings may be warranted for different
time periods.
Prior to service connection becoming effective on May 28, 2002,
the Veteran was treated on multiple occasions for prostatitis and
required hospitalization approximately once a year. Since
service connection became effective, he has continued to receive
treatment for prostatitis, manifested primarily by a tender
prostate, painful dysuria, and urinary obstruction. His
treatment included two periods of hospitalization, one from
September to October 2002 and one in March 2003. On the later
occasion, he underwent laser surgery, transurethral
electrovaporization of the prostate.
In May 2003 and February 2005, the Veteran's private healthcare
provider noted that he had treated the Veteran intermittently for
more than ten years for benign prostatic hypertrophy and
prostatitis with recurrent urinary tract infections; and in March
2005, the Veteran's wife reported that the Veteran was having
increased groin pain and trouble urinating. Although the Veteran
also submitted several extracts from medical texts pertaining to
prostatitis, they did not identify his case, specifically, or
otherwise apply to his particular claim. Nevertheless, in
February 2009, VA examined the Veteran to determine the extent of
the impairment due to his service-connected prostatitis.
During the VA examination, the Veteran reported intermittent
urgency and waking once a night to urinate. He denied renal
dysfunction, hesitancy, urinary incontinence, recurrent urinary
tract infections, renal colic, bladder stones, or acute
nephritis. He was still taking medication; however, it was noted
that he had not required additional intervention, such as
catheterization, dilations, drainage, dialysis, or treatment for
neoplasms. Indeed, the examiner found the Veteran much improved.
Evidence added to the record, since the VA examination, remains,
essentially, negative for the treatment for prostatitis. In
fact, since the March 2003 surgery, the Veteran's treatment
records have been, generally, silent for evidence of voiding
dysfunction, urinary frequency, obstructed voiding, a urinary
tract infection, or renal dysfunction.
Finally, the Board notes that there is no evidence that the
Veteran's prostatitis causes him to miss work or otherwise
interferes with his employment. Similarly, there is no evidence
that it impairs his ability to perform his activities of daily
living. In this regard, the evidence, such as a February 2008 VA
treatment record, shows that the Veteran is independent in
eating, grooming, toileting, and bladder management.
In light of the foregoing, the Board finds that the Veteran meets
or more nearly approximates the schedular criteria for the 10
percent rating currently in effect. Accordingly, an increased
rating is not warranted, and the appeal is denied.
In arriving at the foregoing decision, the Board has also
considered the possibility of referring this case to the Director
of the VA Compensation and Pension Service for possible approval
of an extraschedular rating for the Veteran's service-connected
prostatitis. Ordinarily, the VA Schedule will apply unless there
are exceptional or unusual factors which would render application
of the schedule impractical. See Fisher v. Principi, 4 Vet. App.
57, 60 (1993). An extraschedular disability rating is warranted
upon a finding that the case presents such an exceptional or
unusual disability picture with such related factors as marked
interference with employment or frequent periods of
hospitalization that would render impractical the application of
the regular schedular standards. 38 C.F.R. § 3.321(b)(1) (2009),
Fanning v. Brown, 4 Vet. App. 225, 229 (1993).
There is a three-step inquiry for determining whether a claimant
is entitled to an extraschedular rating. Thun v. Peake, 22 Vet.
App. 111, 115 (2008). First, the Board must determine whether
the evidence presents such an exceptional disability picture that
the available schedular evaluations for that service-connected
disability are inadequate. Second, if the schedular evaluation
is found to be inadequate, the Board must determine whether the
Veteran's disability picture exhibits other related factors, such
as those provided by the regulation as "governing norms." Third,
if the rating schedule is inadequate to evaluate a claimant's
disability picture with such related factors as marked
interference with employment or frequent periods of
hospitalization, then the case must be referred to the VA Under
Secretary for Benefits or the Director of the Compensation and
Pension Service to determine whether, to accord justice, the
claimant's disability picture requires the assignment of an
extraschedular rating.
In this case, neither the Veteran nor his representative has
expressly raised the matter of entitlement to an extraschedular
rating. The Veteran's contentions have been limited to those
discussed above, i.e., that his disability is more severe than is
reflected by the currently assigned rating. See Brannon v. West,
12 Vet. App. 32 (1998) (while the Board must interpret a
claimant's submissions broadly, the Board is not required to
conjure up issues that were not raised by the claimant).
Moreover, the Veteran and his representative have not identified,
and the Board has not found, any factors which may be considered
to be exceptional or unusual with respect to the service-
connected prostatitis. In this regard, the record does not show
that the Veteran has required frequent hospitalizations for that
disorder. Indeed, no unusual clinical picture has been
presented, nor is there any other factor which takes the
disability outside the usual rating criteria. In short, the
evidence does not support the proposition that the Veteran's
prostatitis presents such an exceptional or unusual disability
picture as to render impractical the application of the regular
schedular standards. Accordingly, further action is not
warranted under 38 C.F.R. § 3.321 (b)(1).
ORDER
Entitlement to an initial rating in excess of 10 percent for
prostatitis is denied.
____________________________________________
FRANK J. FLOWERS
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs